Citation Nr: 9809605
Decision Date: 03/27/98 Archive Date: 06/04/98
DOCKET NO. 92-21 426 DATE MAR 27 1998
On appeal from the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD), currently rated 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Kimberly E. Harrison Osborne
INTRODUCTION
The veteran had active military service from October 1968 to
October 1970. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a July 1991 rating decision by the
RO which assigned a 30 percent rating for PTSD.
In August 1993, the Board remanded the veteran's claim to the RO
for further development.
CONTENTION OF APPELLANT ON APPEAL
The veteran contends that his PTSD is more disabling than reflected
in the 30 percent rating currently assigned.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A. 7104
(West 1991 & Supp. 1997), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the evidence supports an increased rating, to 50
percent, for PTSD.
FINDING OF FACT
The veteran's PTSD is productive of considerable social and
industrial impairment; or occupational and social impairment with
reduced reliability and productivity due to various PTSD symptoms.
CONCLUSION OF LAW
The criteria for a rating of 50 percent for service-connected PTSD
have been met. 38 U.S.C.A. 1155 (West 1991 & Supp. 1997); 38
C.F.R. 4.132, Diagnostic Code 9411 (1996), 38 C.F.R. 4.130,
Diagnostic Code 9411 (1997) (effective November 7, 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from October 1968 to
October 1970, including service in Vietnam. His service medical
records show no psychiatric disorder, and psychiatric problems are
first documented after service in 1982. Various psychiatric
conditions, as well as alcohol dependence, have been diagnosed
since then.
In August 1982, the veteran filed a claim of service connection for
PTSD. In March 1983, the RO denied the claim, and on appeal the
claim was denied by the Board in January 1984. In February 1986,
the veteran applied to reopen his claim; the RO denied the
application, and the veteran appealed; and in a February 1991
decision the Board reopened the claim and granted service
connection for PTSD. In a July 1991 decision, the RO promulgated
the grant of service connection for PTSD, and assigned a 30 percent
rating, effective from February 1986. The veteran now appeals the
30 percent rating.
From 1986 to 1987, the veteran received psychiatric counseling from
Dr. Hong S. Kang. On initial consultation in September 1986, the
veteran was noted to complain of nervousness, depression and of
having trouble sleeping. The veteran also complained of having
flashbacks of his Vietnam experiences. Post-traumatic syndrome was
diagnosed. Subsequent records demonstrate that the veteran
continued to complain of nervousness, depression, and of having
nightmares and flashbacks of his Vietnam experiences. The records
also demonstrate that the veteran was prescribed medication due to
his psychiatric complaints.
On VA psychiatric examination in February 1988, the veteran
complained of having flashbacks and nightmares of his Vietnam
experiences. He also complained of sleep disturbance and
nervousness. He reported that he took medication due to his
psychiatric complaints. He stated that he married in July 1987 and
that he had one child. He also stated that he felt close to his
wife. He reported that he had friends but described himself as a
loner. He related that he drunk alcohol and that he would drink 6
beers when he had a flashback. The veteran reported he was laid
off from his litter control job with a city. Mental status
examination revealed that the veteran was cooperative, alert and
oriented times three. His memory was intact. He related that he
felt tense and emotionally disturbed. He stated that he could not
concentrate or remember things. He also stated that his sleep was
impaired and that he had decreased appetite. He reported that he
enjoyed shooting pool. He also reported that he felt uneasy around
people and that he startled easily. Except for flashbacks, he
denied having hallucinations and delusions. Chronic PTSD of
moderate severity was diagnosed.
Letters dated in 1987 and 1988, from the veteran's employer, a city
health department, indicate he began working there in 1986, and his
job was subject to episodic layoffs and reduced hours because of
city budget restraints. The veteran was laid off for the last time
at the end of December 1988.
Social Security Administration (SSA.) records, dated from 1989 to
1991, reveal that the veteran's psychiatric impairment was
evaluated. These records reveal that the veteran complained of
sleep disturbance, depression, as well as having nightmares and
flashbacks of his Vietnam experiences. Alcohol abuse and various
psychiatric conditions, including PTSD, were noted. The SSA
initially denied the veteran's claim for Supplemental Security
Income (SSI) benefits, but such benefits were later granted in
1991.
An April 1990 letter from Throckmorton and Associates shows that
the veteran received treatment for his inability to sleep,
nightmares, flashbacks, substance abuse (alcohol), depression and
stress.
An August to September 1990 VA hospital discharge summary reveals
that the veteran was hospitalized due to his complaints of having
nightmares of his Vietnam experience. He also complained that he
was having problems with his wife. He stated that when he became
depressed he would drink (e.g., a case of beer for 3 days prior to
admission). The examiner stated that the veteran was alert and his
affect was appropriate. His prevailing mood was one of mild
depression. His speech was coherent and relevant. He denied
having hallucinations or delusional thinking. He was oriented in
all spheres and his memory was intact. His discharge diagnoses
were adjustment disorder with depressed mood, and rule out
dysthymia and PTSD.
A December 1991 vocational counseling report noted that the veteran
reported that he did best psychologically when he was occupied. He
stated that he became depressed and irritable when he was not
working. He also stated that he needed additional money to support
his family. He wanted VA to get him a job with the post office or
with the State.
During a March 1991 psychological evaluation performed by Dr.
Albert E. Virgil (clinical psychologist), the veteran related that
he had not worked since 1989. He complained of having nightmares
and flashbacks. He related that he started abusing alcohol in
Vietnam. The examiner stated that alcohol odor was present on the
veteran. On examination, the veteran was noted to be in some
distressed. He talked incessantly about his condition and
problems. He was cooperative and established eye contact. The
veteran related that he drank alcohol as a way of calming himself.
The tone and volume of his voice were normal and the rate of his
speech was appropriate. His manner of speech was normal and his
stream was logical and coherent. His associations were tight. No
abnormalities of speech were evidenced and no blocking or
fragmentation occurred. The veteran stated that his mood was
depressed. He reported sleep and appetite disturbance. He
reported that he was anxious around people and that he had to leave
stores due to anxiety. He reported that he had difficulty
controlling anger. When asked about hallucinatory or delusional
activity, the veteran replied that when he woke up sometimes
"Charlie was there". He stated that the enemy talked to him. He
stated that he did not hear voices but that the voice was like a
thought. He stated that he did not trust people. The examiner
reported that the veteran was in contact with him and that he was
oriented and displayed no clouding of consciousness. The examiner
also stated that the veteran had limited insight and impaired
ability to make sound judgments. The veteran related that his
daily activities involved doing things around the house and
watching his son. He also stated that he watched television. He
stated that although he knew a lot of people they were just
acquaintances. He reported that he went to church. The veteran
underwent a personality assessment. With respect to this
assessment, the examiner stated that the validity configuration
indicated an invalid clinical profile which could reflect an
exaggeration of symptoms. The examiner stated that given the
veteran's overall presentation he would likely experience
difficulty dealing with the demands of supervisors and coworkers in
a work setting situation. The examiner also stated that the
veteran's attention, concentration and immediate memory ability
were within the low average level and he appeared able to follow
repetitive tasks. The examiner also stated that the veteran
presented with estimated borderline intellectual functioning,
depressed and anxious mood, PTSD, and alcohol abuse. The examiner
related that the veteran would not successfully follow a daily work
regimen in a pressured, challenging work-environment. PTSD and
alcohol abuse were diagnosed on Axis I. Axis V revealed a current
global assessment of functioning (GAF) scale score of 50 and a
highest GAF scale score of 50 in the past year.
On an April 1991 VA examination, the veteran reported he avoided
thoughts, feelings, and situations that aroused any recollections
of Vietnam. He was also noted to have flashbacks, nightmares,
outbursts of anger, irritability, difficulty failing and staying
asleep, isolation, decreased concentration, feelings of detachment,
decreased interest in activities, exaggerated startled response,
psychogenic amnesia and depression symptoms. He related that he
and his wife did fairly well. He reported that he last worked in
1988, for a city health department where he had worked for 2 years.
He also related that he was laid off from his place of employment
due to budget cuts. He reported that he did outdoor things with
his wife and his son. He stated that he was on medication to treat
his psychiatric symptoms. On mental status examination, the
veteran's behavior and attitude were both cooperative and somewhat
friendly. He had good eye contact and his speech was relevant and
coherent. His mood was both depressed and anxious with restricted
affect appropriate to mood. No psychotic symptoms were noted, but
flashback experiences were reported to happen quite often. He
denied any homicidal ideations but stated that he often thought
about suicide. His memory for recent and remote events was
somewhat impaired in that he had difficulty remembering aspects of
Vietnam as well as difficulty remembering recent events. He was
oriented to the three spheres. He was judged to be a reliable
informant. He reported sleeping only 4 to 5 hours a night due to
nightmares. Insight and judgment into the extent of his
difficulties were judged to be fair. He had been involved with
therapy and seemed to have a good understanding of his present
psychiatric condition. Intellectual functioning was estimated to
fall in the average range. Calculation abilities, abstract
thinking skills, as well as reasoning seemed consistent within the
range of mental functioning. The examiner diagnosed PTSD. The
examiner stated that the veteran was still presenting with a great
deal of symptomatology suggesting PTSD and therefore it seemed he
would have difficulty obtaining and maintaining employment due to
the extent of the symptoms of PTSD that he is currently having.
A July 1991 VA psychological testing report reveals that the
veteran said he had disturbed memories of Vietnam and that he also
suffered from depression. The impression was PTSD.
VA vocational rehabilitation records show the veteran received
counseling in 1991 and 1992. A February 1992 vocational counseling
report reveals that the veteran was not interested in training
programs, rather he wanted to return to gainful employment as soon
as possible. However, he declined VA employment assistance
services, stating he would pursue such services through the state.
A March 1992 record from Dr. Kang notes that he last saw the
veteran for psychiatric treatment in 1987, and the veteran had now
returned for treatment. Current diagnoses were PTSD and alcohol
dependence. Medication was prescribed. It was also noted that the
veteran was under treatment by another doctor because of chronic
obstructive pulmonary disease.
VA reports from 1990 to 1992 show that the veteran complained of
having nightmares and of being anxious and depressed. In January
1991, it was reported that the veteran related to the vocational
rehabilitation personnel that if he got 100% disability that he
would not need any vocational rehabilitation. The veteran stated
that he could be helped by providing him a job in Portsmouth which
did not require training or he could be helped by increasing his
disability payments. According to an August 1991 record, the
veteran reported that he quit his job following the receipt of VA
and SSA benefits. At a March 1992 visit, the veteran related that
he received private treatment from Dr. Kang for PTSD. The veteran
also related that he preferred to be treated privately but that he
was concerned about stopping VA treatment as he was applying for
more compensation.
A June 1992 VA field examination report includes information from
the veteran's former employers. Interviews with the veteran's
supervisor while he was employed by the City of Portsmouth (until
the end of 1988) revealed that the veteran missed work periodically
but not more than what would usually be considered. It was
reported that the veteran related to his supervisors that he had
problems sleeping and that he had nightmares. The veteran's
position was eliminated because funding for the program was
terminated. It was also reported that the veteran was a nervous
person and that he often smelled of alcohol. The supervisor stated
that the veteran's nervous problems did not affect his work
performance. His duties involved driving the truck, picking up
trash, and helping to supervise the general relief workers. The
owner of Southern Ohio Boat Sales stated that the veteran was
employed with him part-time from May to June 1991. The owner stated
that the veteran did his job well. The company's secretary stated
that the veteran related that he had to leave the company because
his wife was pregnant and she needed the help. It was noted the
veteran did not appear nervous when he was employed at the company,
and he left because he no longer wanted to work. The field
examination noted the veteran received employment services from the
state until May 1992. The state referred him for job interviews
but he was not hired, and he reportedly was reluctant to work for
fear of losing other benefits.
During a July 1992 RO hearing, the veteran testified that he had
nightmares, flashbacks and that he had problems with his memory.
He stated that he had psychogenic amnesia. He related that he went
to church and that he occasionally went fishing with a friend. He
stated that he had problems working around people. The veteran
said he last worked, for about 6 weeks, for Southern Ohio Boat
Sales, where he cleaned boats and did custodial work. He said he
quit that job to take care of his child, and he had been receiving
SSI benefits since then. He also stated that in general he had
problems being around people. He related that his typical day
involved doing household chores and taking care of his children.
The veteran reported that he was shot before service in a hunting
accident and that he was shot after service during a robbery. He
related that he really did not have a lot of flashbacks regarding
being shot. He stated that most of his flashbacks were from
Vietnam.
A September 1992 VA vocational counseling report reveals that the
veteran did not want to enter school. He did not want to receive
any training and he felt that it would be a waste of time to try to
put him into any form of employment assistance plan, as there were
simply no jobs in the area where he resided that were of interest
to him. The counselor explored the possibility that his alcohol
consumption was interfering with his employment seeking efforts.
The veteran denied that he was drinking alcohol. When questioned
as to why he could not find even the most basic form of laborer
jobs, he stated that there were many unskilled individuals who
sought these jobs and that he was not hired because of competition.
He also stated that he was not interest in that type of employment.
The counselor stated that he expressed the greatest interest in
having his disability rating increased. It was decided that
counseling would not be continued. The counselor stated that the
veteran's motivational level was so low that it would probably make
him an infeasible candidate for the program.
Private treatment reports from 1992 to 1996 show that the veteran
received treatment from Dr. Kang. These reports show that the
veteran carried a diagnosis of PTSD and alcohol dependence. The
records reflect that the veteran complained of being depressed. He
also complained of having nightmares, flashbacks, nervousness and
of having problems sleeping. Several of the reports indicate that
the veteran reported that he had improvement with his PTSD
symptoms. The record also reflects that he routinely denied having
delusional thoughts or hallucinations. The records further show
that his speech was coherent and he was always alert and oriented
to all three spheres. It was reported that the veteran was alcohol
dependent. Dr. Kang related that the veteran's condition remained
the same from 1993 to 1996. However, on one occasion in December
1995, it was reported that the veteran's condition was improving
and that he appeared to be well adjusted with medication.
In January 1993, the veteran reported for VA vocational counseling
due to a misconception that he could be paid subsistence allowance
while looking for employment. He decided not to purse training or
counseling. He stated that he would purse employment opportunities
in his home town.
A July 1993 VA examination report reveals that the veteran was
unemployed, had a high school education, was married, and had two
children. During the examination, the veteran gave an extensive
history regarding his PTSD symptomatology. He related that he had
flashbacks. He also related that fie had a lot of stress and that
he had forgetfulness. He reported that he drank two 6 packs of
beer a week. He stated that he received private psychiatric
treatment and that he was on antidepressant medication. Mental
status examination revealed that the veteran was alert, calm,
coherent and cooperative. His mood was dysphoric, and his affect
was constricted but appropriate. His speech was relevant,
productive, and goal directed. There was no evidence of
hallucinations or delusions. He had subjective complaints of
memory impairment. He was unable to repeat the telephone number
and he was unable to do serial 7's. His insight and judgment were
adequate. Chronic PTSD and early signs of dementia were diagnosed.
The examiner stated that he did not give a diagnosis of alcohol
abuse because the history provided to him was not suggestive that
there was impairment in his occupational and social functioning
because of alcohol abuse. The examiner stated that the veteran had
decreased comprehension and that he had to take notes in order not
to forget things. The examiner also stated that the veteran's
inability to repeat the telephone number and his inability to do
serial 7's were enough to warrant a diagnosis of dementia, early
phase.
At a March 1996 VA examination, the veteran gave information
regarding his social and employment history. He was currently
unemployed and was separated from his wife. During this
examination, he complained of having nightmares, being depressed
and of having marital problems. He reported a current history of
drinking to excess on a regular basis. The veteran related that he
was very active in his church and that he participated in school
activities with his children. He stated that he was active with
children playing outside. He indicated that he had a close
relationship with his family and that he was able to get along with
everybody. He related that he enjoyed going to high school
football games. He stated that he liked to clean his house, play
sports, and take care of his children. The veteran related that he
was involved in a domestic violence dispute which he claimed could
have been the result of alcohol. On mental status examination, the
veteran was found to be candid, polite and he answered all
questions readily. His motor activity and gait were normal. His
eye contact was alert. His quality of speech was normal and
relevant and he was oriented to person, place and time. His memory
was intact and his intellectual functioning was within the average
range. His mood was euthymic and his affect was broad. He denied
any suicidal ideation. His impulse control was contained.
However, he reported a history of being explosive both physically
and verbally. His insight and judgment were poor. His somatic
symptoms included nightmares and insomnia. The results of the
MMPI-II were judged to be valid. The scores indicated that the
veteran may harbor feelings of hostility and aggression. He was
not able to express his feeling in a modulated, adaptive manner.
It was reported that the veteran would likely feel socially
inadequate and that he lacked trust in others. The physician
stated that the veteran would generally feel isolated and alienated
and that he may have a nomadic lifestyle and a poor work history.
The physician also stated that he may tend to be unhappy and
depressed and may display a flat affect. It was also reported that
he would present with somatic concerns which at times may be so
intense that they border on delusional and that he may be confused
in his thinking. Alcohol dependence, dysthymia, and PTSD were
diagnosed on Axis I.
A June to July 1996 discharge summary reveals that the veteran was
admitted to a VA hospital due to depression. He reported that he
was not sleeping well and that he was having flashbacks. He stated
that he felt under stress since separating from his wife in March
1996. Examination revealed that the veteran's affect was
depressed. His speech was coherent and relevant. There was no
delusions or hallucinations. The veteran was oriented and his
memory was good. His intelligence was average. His insight was
minimal and his judgment was poor. It was reported that the
veteran drank heavily. He was alert and oriented times 3 spheres.
He handled activities of daily living well. He interacted with
staff and peers and he was cooperative with ward rules. He had
good eye contact. The discharge diagnoses were PTSD and alcohol
dependence. A GAF score of 51-61 was assigned.
In a July 1996 letter, Dr. Kang stated that he treated the veteran
for PTSD. Dr. Kang related that the veteran reported having
flashbacks and nightmares of being in Vietnam. He stated that he
treated the veteran off and on in 1986 and 1987 and that he had
treated the veteran regularly since March 1992. Dr. Kang reported
that in March 1996, the veteran's wife charged the veteran with
domestic violence. Dr. Kang related that the veteran subsequently
became more nervous and more depressed. Dr. Kang reported that the
severity of the veteran's condition affected his relationship with
others and caused impairment in his work abilities. He also
reported that the veteran's was on medication due to his
psychiatric symptoms.
An October 1996 report from Dr. Lee shows the veteran was treated
for bronchitis. It was also noted that the veteran had alcohol
dependency and abuse, and that he was receiving psychiatric
treatment from Dr. Kang for diagnoses of PTSD and depression.
Records of a March 1997 VA hospital admission reveal that the
veteran was admitted with complaints of depression and flashbacks
of Vietnam. He related that his symptoms became worse when he saw
his ex-wife and she avoided him. He reported that he had not seen
his children since December 1996. He also reported that his ex-
wife had a restraining order against him. He reported recent heavy
drinking of alcohol, with suicidal thoughts. The veteran said he
had been unemployed since 1988 and was currently receiving SSI and
VA benefits. He gave a history of three drunk driving charges, the
last one in 1995. The veteran complained of headaches, increased
anxiety and increased restlessness. Mental status examination
revealed that the veteran was not in acute distress. His speech
was coherent and relevant. His affect was appropriate to mood. He
admitted having flashbacks and nightmares of his Vietnam related
experiences. No delusions were elicited. His intelligence was
average. His memory was fair for recent and remote events.
Judgment and insight were fair. PTSD and continuous alcohol
dependency were diagnosed. The GAF score was 40.
In an April 1997 letter, Dr. Kang related that he treated the
veteran for PTSD. He stated that the veteran complained of having
flashbacks and nightmares of his Vietnam experience. He also
complained of having depression, anxiety, irritable moods, and
problems with his temper. He also related that the veteran
reported that he drank heavily. Dr. Kang related that the veteran
received supportive psychotherapy and antidepressant medication.
He stated that the veteran did not have flashbacks or nightmares
often but that he got upset easily and that he lost his temper
quickly. He reported that the veteran's ability to relate with
others seemed to have diminished.
A November 1997 letter from Dr. Kang to VA is similar to the April
1997 letter. The doctor noted the veteran was recently divorced
(the veteran has submitted a copy of his 1997 divorce decree). It
was reported the veteran was taking medication for PTSD. The
doctor opined that the veteran should avoid engaging in gainful
employment due to his inability to relate to the public.
II. Analysis
The veteran's claim for a rating in excess of 30 percent for
service-connected PTSD is well grounded, meaning not inherently
implausible. All relevant facts have been properly developed and,
therefore, the VA's duty to assist the veteran has been satisfied.
38 U.S.C.A. 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of earning
capacity. 38 U.S.C.A. 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities.
When rating the veteran's service-connected disability, the entire
medical history must be borne in mind. Schafrath v. Derwinski, 1
Vet.App. 589 (1991). However, it is the more recent evidence which
is of primary concern, since this provides the most accurate
picture of the current severity of the disability. Francisco v.
Brown, 7 Vet.App. 55 (1994).
The rating schedule criteria for evaluating mental disorders
changed during the pendency of the appeal. The "old" criteria, in
effect prior to November 7, 1996, provided that PTSD is to be rated
30 percent when there is definite impairment in the ability to
establish or maintain effective and wholesome relationships with
people, and when psychoneurotic symptoms result in such reduction
in initiative, flexibility, efficiency, and reliability levels as
to produce definite industrial impairment. (The term "definite" in
the regulation means "distinct, unambiguous, and moderately large
in degree, more than moderate but less than rather large."
VAOPGCPREC 9-93.) A 50 percent rating is to be assigned when the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired, and when by
reason of psychoneurotic symptoms the reliability, flexibility, and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent rating is assigned when
symptoms result in severe social and industrial impairment. 38
C.F.R. 4.132, Code 9411 (1996).
Under the "new" rating criteria, which became effective on November
7, 1996, a 30 percent rating for PTSD is warranted when there is
occupational and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning satisfactorily,
with routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness, panic
attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent events).
A 50 percent rating is warranted when there is occupational and
social impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial, circumlocutory,
or stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of short-
and long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; disturbances of motivation and mood;
difficulty in establishing and maintaining effective work and
social relationships. A 70 percent rating is assigned when the
psychiatric condition produces occupational and social impairment,
with deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike setting); inability to
establish and maintain effective relationships. 38 C.F.R. 4.130,
Code 9411 (1997) (effective November 7, 1996).
The United States Court of Veteran's Appeals (Court) has stated
that where laws or regulations change after a claim has been filed
or reopened but before the administrative or judicial appeal
process is completed, unless Congress provides otherwise, the
version of the law most favorable to the appellant will apply.
Karnas v. Derwinski, 1 Vet.App. 308 (1990). Here, either the
previous or the current rating criteria may apply, whichever are
most favorable to the veteran.
The veteran contends that his PTSD symptomatology is more disabling
than reflected in the 30 percent rating currently assigned. The
veteran's history reveals significant problems with non-service-
connected alcohol abuse, and he also has a number of non-service-
connected psychiatric diagnoses, including dementia, dysthymia, and
an adjustment disorder; these all cause some social and industrial
problems for him. This well-documented history of non-service-
connected mental and behavioral problems, including alcohol abuse,
cannot be considered in determining whether an increased rating for
service-connected PTSD is warranted. 38 U.S.C.A. 105, 1110; 38
C.F.R. 3.301, 4.14; VAOPGCPREC 2-97, 2-98.
With regard to the veteran's industrial history, the evidence shows
he last had an extended period of employment, with a city, in 1988,
and he left that job when he was laid off because of his employer's
budget restraints. He worked several weeks during 1991 with a boat
sales company, and he reportedly left that job because he wanted to
take care of his child. It has also been reported that he quit his
job following receipt of VA and SSA benefits. Records thereafter
show he was offered employment services through both the VA and the
state, until at least 1993, but he had a general disinterest in
obtaining a job, largely due to concerns over compensation. The
medical evidence shows some PTSD symptoms which would interfere
with employment, and Dr. Kang, in his latest letter in 1997,
recommended that the veteran not engage in gainful employment
because of inability to relate to the public. Yet the evidence
shows the veteran never terminated a job because of PTSD symptoms,
nor has PTSD been the primary reason why he has not obtained
another job.
As to the veteran's social history, he describes himself as a
loner, but the evidence also indicates that he has been active in
his church, participates in activities with his children, attends
high school football games, has a close relationship with his
family, and occasionally goes fishing with a friend. The record
demonstrates that the veteran has been physically abusive to his
wife and is recently divorced. The veteran's social impairment is
to be evaluated only as it affects industrial adaptability. 38
C.F.R. 4.129 (effective prior to November 7, 1996); 38 C.F.R. 4.126
(effective November 7, 1996).
With due regard to the benefit-of-the-doubt rule (38 U.S.C.A.
5107(b)), the Board concedes that the veteran's PTSD is 50 percent
disabling under either the old rating criteria of Code 9411
(considerable social and industrial impairment) or the new criteria
of Code 9411 (occupational and social impairment with reduced
reliability and productivity due to various symptoms). To this
extent an increased rating may be granted.
However, the Board also finds that the veteran's PTSD does not
result in more than a 50 percent disability under either the old or
new criteria. The outpatient and impatient records dated to 1997,
as well as other evidence including that from former employers,
clearly document that a major hindrance to employment, and a major
factor in impaired social adaptation, has been the veteran's non-
serviceconnected alcohol abuse. Impairment from alcoholism must be
excluded in rating the service-connected PTSD. Moreover, the VA
field investigation and other documents indicate that the veteran's
lack of employment in the past few years has been due as much to
his concerns over government benefits as it has been due to actual
impairment from PTSD. Focusing on PTSD symptoms, the medical and
other evidence does not show such symptoms are of a magnitude to
produce severe social and industrial impairment (the old criteria
for a 70 percent rating under Code 9411), nor do PTSD symptoms
cause occupational and social impairment with deficiencies in most
areas, such as work, school, family relationships, judgment,
thinking, or mood (the new criteria for a 70 percent rating under
Code 941 1). The overall PTSD disability picture most closely
approximates the criteria for a 50 percent rating, than a 70
percent rating, and thus the lower rating of 50 percent is to be
assigned. 38 C.F.R. 4.7. The preponderance of the evidence is
against a 70 percent rating for PTSD; thus, the benefit-of-the-
doubt rule is inapplicable to this aspect of the claim, which must
be denied. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet.App 49
(1990).
In summary, the Board concludes that an increased rating for PTSD,
to the level of 50 percent but no higher, is warranted.
ORDER
An increased rating, to 50 percent, for PTSD is granted.
L.W. TOBIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS:.Under 38 U.S.C.A. 7266 (West 1991 &
Supp. 1997), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988).
The date which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by the
Board of Veterans' Appeals.